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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 014117/25
In the matter between
CONPACK BUILDING & CIVILS (PTY) LTD APPLICANT
AND
UNIVERSITY OF THE WESTERN CAPE FIRST RESPONDENT
R CONRAD TRADING CC SECOND RESPONDENT
Date of Hearing: 03 March 2025
Date of Judgment: 07 March 2025 (to be delivered via email to the respective counsel)
_____________________________________________________________________
JUDGMENT
__________________________________________________________________ ____
THULARE J
[1] In part A the question is what happens in the meantime and in particular whether
construction in the refurbishment of the Cassinga Residence at the University of the
Western Cape’s (UWC) main campus in Bellville should continue or whether it should
pause while the applicant’s review of UWC’s decision to reject a bid by the applicant for
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a tender in the refurbishment (Part B) is pending. The applicant’s case was that
construction should pa use and sought to urgently interdict UWC from implementing the
tender and concluding or giving effect to any agreement concluded pursuant the
awarding of the tender . It was the applicant’s case that without interim relief, by the time
a court heard its rev iew, the tender would have run to completion or reach ed an
advanced stage. A court of review could not grant the applicant effective relief. With
interim relief, at worst, construction at the residence w ould be delayed by a few weeks,
in what was an already delayed construction project. Construction, moreover, could still
be completed before the start of the next academic year, averting any significant harm
to UWC and its students . The applicant had tendered to UWC that its review be heard in
court by the end of this month.
[2] This was opposed by UWC. UWC ’s case was that the tender was already
implemented, and an agreement concluded pursuant thereto , so, that portion of the
applicant’s case c ould not be granted. What remained was an urgent interdict to prevent
UWC and the second respondent from giving effect to their agreement. This was
opposed and UWC advanced on 4 grounds. UWC’s case was that firstly the intended
effect of the interdict was that there m ust be no refurbishment at all, pending the final
determination of the applicant’s review application , which included any appeals, which
could take years to complete and would outlive the current academic year, and that in
the meantime nothing happened to the residences. This was a residence of over half a
century old that was a health hazard which had to languish with the result that 258
students must be excluded from occupying those residences whilst UWC continued to
incur unbudgeted out -of-pocket expenses simply for the applicant to push forward
narrow commercial interests. Secondly UWC disputed the urgency of the matter and in
the alternative argued that the urgency was self -created. Thirdly UWC argued that the
applicant failed to make out a case for interdictory relief , in particular , UWC’s argument
was that the relief was fundamentally flawed because the applicant’s entire case was
premised on its review application, and, as a matter of law, that was a n impermissible
approach. Finally, UWC’s case was that, given the importance of the refurbishment
project and the prejudice that will be suffered , by UWC and its students, even if the
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applicant satisfied all the requirements for interim interdictory relief, this court should
exercise its discretion to refuse the relief sought.
[3] Between 1 2 December 2024 and 13 January 2025 the parties were still engaged on
the question of the reasons for the UWC decision , thei r adequacy , and the extent to
which the applicant was entitled to written responses and or documents, including the
issue of an undertaking not to implement the tender pending the review proceedings.
For instance , the question of whether the applicant was already at that stage entitled to
the scoresheets which were used by UWC representatives during the inspection for
purposes , as part of the provision of the reasons for UWC’s d ecision, or whether that
was part of the portfolio of evidence necessary for the review, was stil l being discussed
by the parties. The applicant was informed of the decision on 12 December and UWC
did not provide any reason for the decision. The applicant had to request them, which it
did on the same date. It did not receive them until 18 December . In other words, for a
week UWC did not respond. When the applicant received the reasons, it was simply the
finding without any underlying facts. UWC refused to provide the underlying facts for its
findings. UWC cannot be heard complaining about delays to which its own conduct
contributed. The applicant provided an explanation for the delay. The applicant could not
be faltered for requesting the underlying facts , like the score sheets upon which the
decision was based at the time . It was also well within the rights of UWC to point t he
applicant to its information office and PAIA as the availabl e machinery for documents
that the applicant sought at the time , to consider its position .
[4] The applicant knew that its bid was rejected, and there was nothing wrong with it
asking why its bid was not successful. I am not persuaded that exhausting a n available
avenue of requesting documents , to enable you to assess your response to an adverse
decision , first, before launching court processes which will allow you access to such
documents, was on its own inherently a wrong choice. That choice was not sufficient to
deny the applicant’s audience on urgency , under the circumstances. A choice that is not
wrong is not always automatically a right choice . UWC awarded the tender to second
respondent on 10 December 2024, concluded a contract with the second respondent on
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31 January 2025 and the refurbishment commenced thereafter and is und erway. By 4
February 2025 when the applicant instituted its application , the agreement was already
concluded and implemented. The applicant was out of time to interdict the conclusion of
the agreement and its implementation. What remain ed for consideration , on its prayers ,
was the second part of clause 2.2 of its prayers, which was ‘giving effect to any
agreement concluded pursuant to the award of the tender ’.
[5] The applicant was a construction and civil engineering company and until January
2023 operated primarily in KwaZulu -Natal. In 2023 it decided to expand to the Western
Cape and on 16 January 2023 concluded a lease agreement for commercial premises,
which served as its administrative and operational hub for its Western Cape activities.
According to the applicant refurbishment projects of the nature tendered for were
characterized by their reliance on locally sourced resources to ensure profitability and
effective project delivery. The lean operational model which it used avoided
unnecessary overhead costs associated with maintaining a large fleet of equipment or
excessive staff and instead relied on local plants , equipment and subcontractors to
execu te projects . According to the applicant, m odern construction practices prioritized
collaboration with specialist subcontractors and small to medium enterprises which
provided highly specialized services and equipment. This eliminated the cost burden of
maintaining and transporting extensive plan t machinery . Its Cape Town offi ce oversaw
and managed all operational aspects in the Western Cape. It was staffed with key
personnel whose roles included project planning , oversight of subcontractors, ensuring
compliance with safety standards and coordinating logistics for materials and
equipment.
[6] In its papers the applicant indicated that it submitted a bid to tender for the UWC
refurbishment project of the Cassinga Residences (Blocks A, B and C) . The tender
document required, as one of the mandatory criteri a “proof of fully established and fully
operational Western Cape Business Premises (Eg Municipal Bill, Valid Lease
Agreement),” Other than requiring the provision of a municipal bill or valid le ase
agreement as proof of business premises, the tender document did not set out any
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further requirements, criteria or specifications for the required business premises other
than the fact that they should be in the Western Cape and should be operational.
Accordingly, as part of its tender submission, the applicant submitted a valid lease
agreement. The applicant had not been aware of the email sent by UWC on 19
November 2024 advising of the intended inspe ction the next day. At the time of the
inspection the majority of the applicant’s staff were engaged in external site activities or
meetings. The inspection team arrived unannounced, contrary to basic fairness
principles with less than 24 hours’ notice .
[7] On 12 December 2024 UWC informed the applicant that its bid proposal was
unsuccessful. On 18 December 2024 UWC provided the applicant with the reasons as
to why it was disqualified from the tender process to wit, that the applicant did not
comply with the req uirement of ‘proof of fully established and fully operational Western
Cape Business Premises’. UWC also informed the applicant that it would not provide
the requested open -ended undertaking to suspend the implementation of the tender
pending the applicant’s receipt of various documents and its consideration of the legality
of UWC’s decision. At the time of the application, UWC had already awarded the tender
to the second respondent on 10 December 2024 , had contracted with the second
respondent in respect thereof on 31 January 2025 and the refurbishment project was
underway . The site was not in a state where students could be moved back into the
residence should the refurbishment be halted. UWC had entered into a year -long lease
agreeme nt with an external service provider to provide temporary accommodation for
the affected students, who have already been moved out of the Cassinga Residences.
[8] UWC found that the applicant failed to comply with a mandatory requirement of
providing proof of a ‘fully established and fully operational Western Cape Business
Premises’ . On 19 December 2024 UWC notified the applicant of its intended site
inspection and therein specifi ed the standard of compliance required and the objective
criteria that was used . The applicant was specifically advised th at UWC would need to
verify (1) fully operational and established Western Cape Premises , (2) Local plant and
equipment viz. construction tools, vehicles etc , (3) Local stores and (4) Local Huma n
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resources. On 2 0 November 2024 UWC conducted a site inspection at the applicant’s
premises in connection with the applicant’s bid for the tender . There was no signage on
the building and UWC ’s representatives were unsure if they were at the correct address.
They were not met by anyone when they arrived at the premises and subsequently
encountered the applicant’s office manager . UWC did not find the heavy equipment on
the applicant’s premises, which machinery was listed in the applicant’s bid as being
owned by the applicant and listed in the applicant’s bid documents . Such heavy
equipment in the bid documents included generators, mac hinery, welding equipment,
rollers , an excavator, a concrete mixer, a compressor, water pumps and a crane. UWC
formed the view that the applicant’s premises inspected were merely an office which
housed small tools. UWC did not observe the operational prese nce of a construction
business at the applicant’s premises . UWC’s position was re -affirmed by its reading of
the lease agreement which the applicant provided for the premises, which UWC
understood to convey that the premises could only be used for office and yard/storage
purposes. This UWC understood to be not comparable to a lease agreement of a
construction company with any recognizable presence in the Western Cape. UWC was
told by the applicant during the inspection that the applicant’s head offi ce was in
KwaZulu -Natal and that office in KZN did all the applicant’s administrative work.
[9] UWC was told by the applicant during the inspection that the applicant’s plant was
based in KwaZulu -Natal. UWC concluded that a small office, accommodating small
tools could hardly be described as establishing a presence in the Western Cap e. Not
even picks, spades, concrete breakers or hand tools were obse rved on the premised by
UWC during the site inspection. Minimal tools, to wit one ladder, two drills , two
wheelbarrows and scaffolding were observed. The necessary equipment for a large -
scale refurbishment project was not present. UWC concluded that the applicant’s
premises were not fully established in the Western Cape. UWC ’s view was that despite
the applicant claiming to have the requisite plant and equipment for the refurbishment
project in its bid proposal, the plant and equipm ent were not in the Western Cape and
might be in KwaZulu -Natal or simply non -existent. The heavy equipment listed in the
applicant’s bid proposal was not present at its Western Cape premises. The Tender
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Working Group of UWC found that the applicant did not comply with the mandatory
requirement as stipulated in the Tender document and recommended that the applicant
should not advance to the next stage of the evaluation process.
[10] The Constitut ional Court1 said:
“[24] … Foremost is whether the applicant has shown a prima facie right that is
likely to lead to the relief sought in the main dispute. This requirement is weighed
up along with the irreparable and imminent harm to the right if an interdict is not
granted and whether the balance of convenience favours the granting of the
interdict. Lastly, the applicant must have no other effective remedy.”
The Constitutional Court continued at para 25 :
“[25] A prima fa cie right may be established b y demonstrating prospects of
success in the review. ”
The applicant has shown that the decision of UWC is debatable . That is not enough to
meet the threshold of an interim interdict. The applicant did not set out facts that
showed a decision of UWC that app eared flawed . The applicant did not bring to the
fore, in this application, that the decision of UWC was invalid and that the interdict was
to prevent the loss that the applicant sought to recover. The applicant did not need to
show the certain existence of the right. It is necessary only to show a right, though at
the level of interim relief it may be open to some doubt.2 I am unable to conclude that on
the facts, the pending review is likely to be granted, and to find that the review bore
prospects of success. The applicant has not been able to show its entitlement to the
contract. The applicant failed to establish a prima facie right that entitled it to have
refurbishment already underway to be stopped, so that it could protect that right. The
interdict would have been app ropriate before the award and implementation of the
1 SA Informal Traders Forum v City of Johannesburg 2014 (4) SA 371 (CC) at para 24.
2 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 (5) BCLR 527 (CC) at
para 293.
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tender. After it was awarded and implemented , the appropriate remedy was a n urgent
review.3
[11] The decision of UWC on the tender adversely affected the economic interests of the
applicant. The decision was already implemented and construction to refurbish was
underway. The harm was not imminent , immediate and irreversible . An urgent review
was an answer to the applicant’s complaint. The applicant did not show a need for a
pressing and urgent temporary relief. An interim interdict anticipates the later dispute,
but most importan tly, it also eliminates the source of loss that an applicant invoked.4 It is
not retrospective and cannot undo what was already done , to wit, the award and
implementation of the tender where the refurbishing was underway . That ship ha d left
the harbour and was sailing. In OUTA5 at para 50 it was said:
“[50] Under the Setlogelo test the prima facie right a claimant must establish is
not merely the right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict, irreparable harm
would ensue. An interdict is meant to prevent future conduct and not decisions
already made. Quite apart from the right to review and to set asid e impugned
decisions, the applicants should have demonstrated a prima facie right that is
threatened by an impending or imminent irreparable harm. The right to review the
impugned decisions did not require any preservation pendente lite.”
[12] I am unable to trace irreparable harm that arose from the right that the applicant
enjoyed. At best the applicant has shown a commercial interest in the possibility of
making a profit if the applicant succeeds in the review. I have my doubts that the mere
possibility of making a profit if successful in a competitive tender , where an applicant
faces a probable defence of non -compliance, qualified as a prima facie right sufficient to
3 Olitzki Property Holdings v State Tender Board and Another 2001 (3 ) SA 1247 (SCA) at para 42 ; Darson
Construction (Pty) Ltd v City of Cape Town 2007 (4) SA 488 (CPD) at 508 A-C.
4 Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) at para 38.
5 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223.
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sustain interim relief of an interdict.6 The apprehension of a financial loss , if advanced
as a factor must be well -founded, for an interim interdict. On the other hand, if the
applicant succeeds in review, compensation is one of the remedial relief s available.7 I
have considered the judgment o f Lekhuleni J8 and agree that the right to review, on its
own, is not suffi cient to sustain an interim interdict. I am not sure that I understand
Lekhuleni J sufficiently to wholly agree with him, suffice it to state that my understanding
of the legal position is that an applicant may establish a prima facie right by
demonstrating prospects of success in review. I will state it no further than that to say an
applicant must demonstrate that the decision was flawed or invalid to show a right to
review.
[13] The student housing crisis and the large shortfall of student accommodation at
institutions of higher education in the country, including UWC , is well-known. The
students who stayed at the Cassinga have been moved out to temporary
accommodation off -campus provided by an external se rvice provider. The building itself
is 54 years old and in dire need of major refurbishment so that the students reside in
conducive accommodation which supported learning and the realization of their right to
further education. The housing at Cassinga costs approximately R38 000 per student in
the academic year whilst the private accommodation is about R50 000. The difference
in fees is about R12 000 per student. The increased fees have the potential to exclude
students completely because of affordabil ity, whilst others may be affected in
attendance and academic performance especially if they are unable to secure
alternative accommodation close to the university . UWC was forced to arrange
transportation for the students between the new accommodation and campus at
additional cost and if the refurbishments are not completed within the 2025 academic
year as planned, UWC will be required to renew the lease for the temporary
accommodation for another full year at a cost of about R12 900 000-00 plus annual
increased as out -of-pocket expenses in addition to significant transport costs , which
6 Mega Ndira Resources CC v City of Cape Town and Others WCHC (3641/2023) (29 June 2023) para
20.
7 PAJA section 8(1); Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC) para 132.
8 Greenpoint Residents Association and Ratepayers Association and Others v Gartner and Others
(4859/ 2024) [2024] ZAWCHC 159 (3 June 2024) para 64-67.
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UWC did not anticipate and did not budget for. The delay will cause UWC and its
students to suffer prejudice. The move of the completion date to later in the year or even
years if the appeal rights are considered , will have both an academic and financial
negative impact on both UWC and its student body .
[14] In its answer , UWC said that the applicant had an alternative satisfactory remedy to
an interim inter dict, which remedy was also preventative, in the form of an expedited
judicial review , which the applicant failed to pursue. The expedited judicial review would
have mitigated against any of the alleged losses to be suffered by the applicant. After
the answer, in reply, it appears that the applicant conceded that it had an alternative
remedy and sought an expedited review. Para 71 of the replying affidavit reads:
“71. Given the nature of the issue in dispute – being the interpretation of “fully
operational premises” in the Western Cape – Conpack submits that an expedited
review can and should be conducted to resolve the matter swiftly. An expeditious
resolut ion would allow the project to commence without undue delay, which is in
the interests of justice.”
To advance its change of front, the applicant went further and even submitted a draft
order attached to its reply, wherein it suggested timelines for an exp edited review. True
to form, its first strike is urgency, and the second the suspension of works as envisaged
in the tender awarded , in its draft order. It suffices to note that the applicant also brought
in facts which it did not raise in its founding papers, in reply . It is impermissible and it
took the matter no further .
[15] The court has a discretion whether to grant a temporary interdict.9 The judicial
discretion must be exercised properly10 and upon established facts.11 I am persuaded
that the applicant’s papers do not warrant the remedy of an interim interdict. For these
reasons I make the following order :
9 Knox D’Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) at 360 G.
10 Knox D’Arcy p360E -F;
11 Benoni Town Council v Meyer 1961 (3) SA 316 (W) at 326.
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(a) Prayer 1 of Part A of the notice of motion is granted.
(b) Prayer 2 and 3 of Part A of the notice of motion in their enti rety, in essence
the interim interdict, are dismissed.
(c) The applicant is to pay the costs, including the costs of counsel on scale C.
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DM THULARE
JUDGE OF THE HIGH COURT